Sitting at Nuremberg, Germany
14th May to 24th May, 1946

SIR DAVID MAXWELL FYFE: I am sorry, my Lord, this is
entirely my fault. I beg the Tribunal's pardon. I have given
the wrong reference. I really wanted him to look at Page 59
in Document Book 10, Document C-170. I am very sorry, my
Lord.

BY SIR DAVID MAXWELL FYFE:

Q. Now, that is the extract from the Naval War Diary, the
one that I want you to look at is on Page 59, entry of 15th
June.

"On the proposal of the Naval War Staff (SKL) the use of
arms against Russian submarines south of the northern
boundary of Oeland warning area - "

Have you got it?

A. Yes.

Q. " - is permitted immediately, and ruthless destruction is
to be aimed at."

Now, would you mind, before I ask you a question, turning
back to Document C-38, which is on Page 11 of the British
Document Book, and Page 19 of your own Document Book. That
is an order of the same date, signed by defendant Keitel, to
the C.-in-C. of the Navy.

[Page 215]

"Offensive action against submarines south of the line
Memel to the southern tip of Oeland is authorized if the
boats cannot be definitely identified as Swedish during
the approach by German naval forces. The reason to be
given up to 'B' Day - that is 'Barbarossa' - is that our
naval forces are believed to be dealing with penetrating
British submarines."

Why did you suggest that you should attack the Soviet
submarines six days before your own invasion when they would
not be expecting any attack and there was no question of any
war?

A. As it has already been explained once here, it had
happened just before, that is before 15th June, that a
submarine had penetrated into the area of Bornholm, which is
a long way to the west, and then bad given wrong recognition
signals when the patrol boat near Bornholm called it. As the
wrong recognition signals were given, it meant that it could
not be a German submarine but it must be a foreign one. In
this case, the course and position of the ship led us to the
conclusion that it must be Russian. Apart from that, Russian
submarines at that time had repeatedly been located and
reported off German ports - Memel, for instance.
Consequently, we had the impression that Russian submarines
were already occupying positions outside German ports,
either to lay mines or to attack merchant or warships. For
that reason, as a precaution, I had to report, and I had to
propose that we should take action against non-German
submarines in these areas outside German ports. That
suggestion was passed on the same day and this additional
statement was added, which in my opinion was not necessary
at all, but which prevented complications from arising.

Q. That is still not an answer to my question. I will put it
this way. You considered it right to attack and urge the
ruthless destruction of Soviet submarines six days before
you attacked the Soviet Union? You consider that right? And
then, to blame it on penetrating British submarines, this is
Keitel's suggestion - is that your view of proper warfare?

A. Well, I consider the first point right, because it is
always important to get in before one's opponent, and this
was happening under certain definite conditions. The second
point was ordered by the Fuehrer. Neither of the two points
was ever carried out, and therefore it is useless, in my
opinion, to discuss this matter.

Q. That is something for the Tribunal, and I will decide
what is useful to discuss.

Do I take it, then, that you entirely approve of attacking
Soviet submarines and ruthlessly destroying them six days
before you start the war? That is what the Tribunal is to
understand, is it?

A. Yes, if they appeared in our waters to reconnoitre or to
carry out some other war action, then I considered it right.
I considered that better than that our ships should run into
Russian mines.

Q. Well now, let us just come, for a short time, to your
views on U-boat warfare. Do you remember the document which
I put to the defendant Donitz about the memorandum of the
Foreign Office, D-851, which became GB 451?

A. I have it before me.

Q. Right. Well, I will ask about that in a moment. This is
what you said about it when you were answering Dr.
Kranzbuhler, I think on Saturday. You said:-

"Since the war against England came quite as a surprise
to us, we had, up to then, dealt with detailed questions
of submarine warfare only to a small extent. Among other
things, we had not discussed at all the questions of the
so-called unrestricted submarine warfare which, in the
previous war, played a very important part. Therefore, on
3rd September, the officer who had recently been
mentioned here was sent to the Foreign Office with a few
points to be discussed concerning that question of
unrestricted submarine warfare, so that we should clarify
with the Foreign Office just how far we ought to go."

Now, do you think that is -

[Page 216]

A. So far as I can recollect, that is the way it happened.
Unrestricted warfare had not been considered.

Q. Have you got the document in front of you?

A. You mean the one regarding the Foreign Office, D-851?

Q. Donitz 851, yes -

A. Yes.

S I R DAVID MAXWELL FYFE: I do not think this is in any
book, my Lord.

Has your Lordship a copy?

THE PRESIDENT: No, I do not think so.

SIR DAVID MAXWELL FYFE: My Lord, I did put it in when I was
cross-examining the defendant Donitz.

THE PRESIDENT: It is very likely with our Donitz papers.

SIR DAVID MAXWELL FYFE: Perhaps your Lordship will allow me
to just read it slowly, for the moment. The document says
this:-

"The question of an unrestricted U-boat warfare against
England is discussed in the enclosed data submitted by
the Naval High Command.

The Navy has arrived at the conclusion that the maximum
damage to England which can be achieved with the forces
available can only be attained if the U-boats are
permitted an unrestricted use of arms without warning
against enemy and neutral shipping in the prohibited area
indicated on the enclosed map. The Navy does not fail to
realize that:-

(a) Germany would thereby publicly disregard the
agreement of 1936 regarding the prosecution of economic
warfare.

(b) Prosecution of the war on these lines could not be
justified on the basis of the hitherto generally
accepted principles of International Law."

Then I ought to read this, or point it out. I have dealt
with it before, it is the second last paragraph:-

"Points of view based on foreign politics would favour
using the method of unrestricted U-boat warfare only if
England gives us a justification by her method of waging
war to order this form of warfare as a reprisal."

BY SIR DAVID MAXWELL FYFE:

Q. Now, I want you to take it by stages. You see the
paragraph that says:-

"The Navy has arrived at the conclusion that the maximum
damage to England which can be achieved with the forces
available can only be attained if U-boats are permitted an
unrestricted use of arms without warning in the area."

Is that your view? Was that your view on 3rd September?

A. No, it was not my view; it is a conditional view. We had
given submarines the order to wage economic warfare
according to the Prize Ordinance, and we had provided that
if the British were to arm merchant ships or something like
that, then certain intensifications -

Q. Will you please give me an answer to the question I asked
you? It is a perfectly easy question.

A. Yes.

Q. Well, is it not your view?

A. In theory, of course, considering the small resources
that we had, the greatest possible damage to England could
only be achieved through ... We had to discuss with the
Foreign Office just how far we could go with this intensive
action. For this reason, this officer was sent there for
discussions, and these resulted in the submarine memorandum,
which shows, from beginning to end, that we were trying to
adhere to the existing law as far as possible. The whole
memorandum is nothing more than just that sort of
discussion.

[Page 217]

Q. Now, will you answer my question? When this document
says, "the Navy has arrived at the conclusion," is it true
that the Navy had arrived at that conclusion?

A. Yes.

Q. Is that true or not?

A. But of course, everybody would arrive at that conclusion.

Q. It is much easier to say, "yes," than to give a long
explanation.

Now, let us come to another point. Is it true that you had
arrived at that conclusion without consulting the Flag
Officer, U-boats, as the defendant Donitz said when he gave
evidence?

A. Regarding these matters, we only agreed before the
submarines put to sea that they should wage war according to
the Prize Ordinance. We did not ask the Flag Officer whether
he wanted to carry out unrestricted U-boat warfare, because
I did not want it. First of all I had to discuss it with the
Foreign Office, to find out how far we could go. The purpose
was to give individual orders, such orders as we were
entitled to give, step by step, in accordance with the
behaviour of the British. This was a question of
International Law, which I had to discuss with the
International Law Expert in the Foreign Office.

Q. Is it not correct that you continued to press this point
of view, the conclusion of which you had arrived at, with
the Foreign Office for the next three months? Is it not
correct that you continued to press for an unrestricted U-
boat warfare within the area for the next three months?

A. I hardly think so; otherwise I would not have issued the
memorandum of 3rd September. Maybe we did go to the Foreign
Office and put on pressure, but what we did is contained in
the memorandum and our measures were intensified step by
step, following steps taken by the British.

Q. Well, now, the next step with the Foreign Office was a
conference with Baron von Weiszacker, on 25th September,
which you will see in Document D-85a, Exhibit GB 469. You
see paragraph 3 of that document:-

"The OKM (Naval High Command) will submit to the Foreign
Office a proposal, as a basis for a communication to the
neutral powers, in which will be communicated those
intensifications of naval warfare, the ordering of which
has already taken place or is impending in the near
future. This includes, particularly, a warning not to use
wireless on being stopped, not to sail in convoy, and not
to black out."

That was your first step, was it not? That was put up to the
Foreign Office, with a number of other proposals?

A. But of course. The first measure was that armed merchant
ships could be attacked, because as early as 6th or 8th
September, a submarine had stopped a merchant ship, the
Manar, had fired a warning shot, and had at once been fired
on by the British steamer. Thereupon the submarine started
firing at the merchant ship. Such cases were known. And
since one cannot recognize in every case whether the ship is
armed or not, we assumed that it would end in all ships
being fired at. However, at that time it was ordered that
only armed British merchant ships should be fired at.
Secondly, that ships which sent a wireless message when
stopped could also be shot at, because this use of wireless,
which was done by order of the Admiralty, would immediately
bring to the spot both naval and air forces, especially the
latter, which would shoot at the U-boat.

The first step, therefore, was firing on armed merchant
ships - the passenger steamers were still excepted - and
secondly, firing on blacked-out vessels and firing on those
who made use of wireless. Blacked-out vessels are -

Q. Well, now would you look at Document D-853. I only want
you to look at the next document, which will be Exhibit GB
470. I want you to come as soon as possible to this
memorandum of which you talked.

D-853, if you will look at section 2, is a report by the
Under Secretary of State of the Foreign Office, dated 27th
September, which goes through these matters

[Page 218]

which you talked about just now, the sinking at sight of
French and British ships, under the assumption that they are
armed. In paragraph 2 it is said:-

"The Naval War Staff indicated anew that the Fuehrer will
probably order ruthless U-boat warfare in the restricted
area in the very near future. The previous participation
of the Foreign Office remains guaranteed."

Were you still pressing for absolutely unrestricted warfare
within a large area to the west of Britain and around
Britain?

A. Yes. In so far as we took intensification actions step by
step on the basis of our observations regarding the attitude
of enemy forces, particularly in cases where intensification
was perfectly justified, which later on proved to be right.

Q. Would you look at Baron Weizsacker's minutes of the 14th
October - Document D-857, which will be Exhibit GB 471.

Now, you see, this is after these measures have been taken,
which you have just explained to the Tribunal. Baron von
Weiszacker reports to the defendant von Ribbentrop:-

"According to my information, the decision on
unrestricted U-boat warfare against England is imminent.
This is at least as much a political decision as it is a
technicality of war. A short while ago I submitted in
writing my personal view that unrestricted U-boat warfare
would bring new enemies upon us at a time when we still
lack the necessary U-boats to defeat England. On the
other hand, the Navy's attitude of insisting on the
opening of unrestricted U-boat warfare is backed by every
convincing reason."

Then he says that it is necessary to ask for certain
information. On that you put in - at that point you put in
your memorandum of 15th October, which, my Lord, is Document
C-157, Exhibit GB 224,

A. First of all, may I say something about the previous
document? This expression, "unrestricted warfare" -

Q. You can do it later on, because we have got a lot of
ground to cover here.

THE PRESIDENT: Sir David, the Tribunal thinks he ought to be
allowed to say what he wants to say on that document.

A. Now the two documents are gone. What I wanted to say was
that the expression, "unrestricted submarine warfare," on
the part of the Foreign Office originated from the previous
World War. In reality, and during the entire war, we did not
wage unrestricted U-boat warfare in the sense of the
unrestricted submarine warfare of the first World War. Even
then, where he says, "unrestricted submarine warfare might
be imminent" - we only ordered very restricted measures,
which always were based on the fact that the British had
ordered something on their part. The chief action on the
part of the British was that of militarising the entire
Merchant Navy to a certain extent. That is to say, the
Merchant Navy was being armed, and they received the order
to use these arms.

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